Public Bill Committee

[Mr. Joe Benton in the Chair]

Clause 28

Powers to wind up companies etc: England and Wales

Amendment proposed [this day]: No. 36, in clause 28, page 16, line 28, after ‘to’, insert ‘—(a) ’.—[Mr. Coaker.]

Question again proposed, That the amendment be made.

Joe Benton: I remind the Committee that with this we are discussing the following: Government amendments Nos. 37 to 49
Government amendment No. 200
Government amendment No. 201
Government new clause 15—Powers to wind up: supplementary.

Vernon Coaker: Good afternoon, Mr. Benton. Welcome back to the Committee. You will notice that there is a bit of a change of membership, but we shall still be proceeding in good heart and with good debate.
I wish to turn to the point made by the hon. Member for Hornchurch in response to my formally moving the various Government amendments. He referred to what the applicant authorities will give consideration to when deciding whether it is in the public interest to make an application for the winding up of a body. To put the matter in context, I wish to emphasise the two-part nature of the winding-up process—as the hon. Gentleman did. When an organisation has been convicted of the offence of a breach of an order, the applicant authority will consider whether it is in the public interest to petition the court to have it wound up. It is then up to the court to consider separately whether it is also just and equitable for the organisation to be so wound up. I did not mean to refer to the director of the applicant authority this morning. I apologise.
The purpose of the clause is to deal with instances, even though they might be few, when an organisation is being used effectively as a shell or front for serious criminal activity, is producing or doing little or nothing of worth and is being used to cause harm through serious crime. The applicant authorities will be considering that when looking at the public interest and, effectively, whether the organisation is still a legitimate concern and working towards a legitimate legal end or whether it is simply a vehicle for criminal purposes.
As I made clear, when the latter is the case, it will still be for the courts to make a separate determination whether it would also be just and equitable for the organisation to be wound up. That will include a consideration of what effect the winding-up will have on third parties, such as the customers or creditors of the organisation. We believe that it is an effective sanction with adequate protections in place to ensure that it occurs only when appropriate.
All the amendments are technical and would improve the Bill and, now that I have answered the hon. Gentleman’s specific points, I hope that the Committee will support them.

Amendment agreed to.

Amendments made: No. 37, in clause 28, page 16,line 29, leave out ‘as if it were’ and insert ‘; and
(b) the company’s winding up;
as it applies in relation to’.
No. 38, in clause 28, page 16, line 30, leave out ‘(petition for’ and insert
‘for the winding up of a company and the company’s windingup (’.
No. 39, in clause 28, page 16, line 43, leave out ‘has effect’ and insert
‘applies for the purposes of this section’.
No. 40, in clause 28, page 17, line 2, after ‘appropriate,’, insert ‘in relation’.
No. 41, in clause 28, page 17, line 3, at end insert ‘and the relevant body’s winding up’.
No. 42, in clause 28, page 17, line 9, at end insert—
‘( ) No petition may be presented to, or order to wind up made by, a court in Scotland by virtue of this section in respect of a company, partnership or relevant body whose estate may be sequestrated under the Bankruptcy (Scotland) Act 1985 (c. 66).’.
No. 43, in clause 28, page 17, line 28, leave out ‘Scotland or’.—[Mr. Coaker.]

Clause 28, as amended, ordered to stand part of the Bill.

Clause 29

Powers to wind up companies etc: Northern Ireland

Amendments made: No. 44, in clause 29, page 18,line 8, after ‘to’, insert ‘—
(a) ’.
No. 45, in clause 29, page 18, line 8, leave out ‘as if it were’ and insert ‘; and
(b) the company’s winding up;
as it applies in relation to’.
No. 46, in clause 29, page 18, line 9, leave out ‘(petition for’ and insert
‘for the winding up of a company and the company’s windingup (’.
No. 47, in clause 29, page 18, line 22, leave out ‘has effect’ and insert
‘applies for the purposes of this section’.
No. 48, in clause 29, page 18, line 25, after ‘appropriate,’, insert ‘in relation’.
No. 49, in clause 29, page 18, line 26, at end insert ‘and the relevant body’s winding up’.—[Mr. Coaker.]

Clause 29, as amended, ordered to stand part of the Bill.

Clause 30

Bodies corporate including limited liability partnerships

Question proposed, That the clause stand part of the Bill.

Vernon Coaker: In asking the Committee to support the clause, I hope that it will be helpful if I respond to the hon. Member for Hornchurch who asked, in reference to “a person” under clause 26, about orders against corporate bodies. I had promised to return to that issue this afternoon.
If a body corporate is given a serious crime prevention order—as set out in clause 30 and other clauses—it will be capable of being prosecuted for breach if it does not comply with the terms of the order. Therefore, the reference to “a person” under clause 26 includes not only an individual, but a body corporate, a partnership and an unincorporated association.
However, the hon. Gentleman was also interested in the position of officers or employees of a company. For example, clause 32—as does clauses 31—provides that, if an offence under clause 26 is committed by a body corporate, with the consent or connivance of an officer of the body corporate or a person purporting to act in that capacity, the officer as well as the body corporate is guilty of the offence under clause 26 and is liable to be prosecuted. In that context, “officer” means a director, manager, secretary or other similar officer. There are similar provisions in relation to partnerships and unincorporated associations in clause 31(8) and clause 32(7) respectively. I hope that that answers the hon. Gentleman’s question.

James Brokenshire: I welcome you to the Chair, Mr. Benton, and I express my pleasure at serving under you in this Committee. I thank the Minister for that response and the clarification in relation to the role of officers in that context, which is helpful. I may have one or two further questions about unincorporated associations with which I hope he will be able to assist me when we get to that clause.

Question put and agreed to.

Clause 30 ordered to stand part of the Bill.

Clause 31 ordered to stand part of the Bill.

Clause 32

Unincorporated associations

Question proposed,That the clause stand part of the Bill.

James Brokenshire: There is a small technical point about unincorporated associations. Again, this relates to the circumstances where a serious crime prevention order has been taken out against an unincorporated association. The clause makes it clear that actions are to be brought in the name of the unincorporated association, rather than any specific individuals. It also makes it clear that if there is a fine attached to an offence, it should be paid out of the funds of the association, rather than by any specific individual. The Minister refers to the possibility of connivance having relation to the clause.
Obviously, an unincorporated association, by its nature, is a group or a body of individuals who make up that association. Its membership may change from time to time. The Minister may not be able to answer this question immediately, but a thought that crossed my mind in relation to fines is that the Bill says that fines will be paid out of the association, but if the association does not have such funds, in those circumstances normally one would look in terms of individual liability that would attach to the members. I know that there are specific provisions that govern when someone is deemed to be a member, or when the membership changes, which are contained in the earlier part of the clause, but I seek clarification or assurance from the Minister as to whether the situation has been envisaged where a fine has been levied but there are insufficient assets from the unincorporated association to meet such a liability, and what would happen in such circumstances.

Vernon Coaker: I reiterate that persons, or whoever is connected with the unincorporated association, will be liable only if they have conducted a conspiracy that did not meet the serious crime prevention order conditions. That gives me the chance to stress that that would not be so if someone were negligent. That is the important point. Subsection (7) states:
“If an offence under section 26 committed by an incorporated association is proved to have been committed by the consent or connivance of an officer of the association, he (as well as the association) is guilty of the offence and liable to be proceeded against and punished accordingly.”
What one would have to look at in terms of the individuals who may have connived or conspired to subvert, is whether it would be appropriate for them to be held liable. That would be a decision for the court, and it would be a matter of whether that would be reasonable or not.

James Brokenshire: To assist the Minister about the terms that I was making, I entirely accept his point about the connivance argument. I was looking at subsection (6), which deals with the fine imposedon the association and what might happen in circumstances where the funds of the association were not sufficient to pay the fine if it was levied at a high level. I was seeking clarification on that matter. I entirely accept the Minister’s point in relation to connivance.

Vernon Coaker: I am sorry; I slightly misunderstood the point that the hon. Gentleman made. With respect to subsection (6), our intention would certainly be to pursue the funds of the association rather than to pursue individual members.

Question put and agreed to.

Clause 32 ordered to stand part of the Bill.

Clause 33 ordered to stand part of the Bill.

Clause 34

Proceedings in the High Court

James Brokenshire: I beg to move amendment No. 18, in clause 34, page 22, line 35, leave out ‘civil’ and insert ‘criminal’.

Joe Benton: With this, it will be convenient to discuss the following amendments: No. 19, in clause 34, page 22, line 36, leave out subsection (2).
No. 20, in clause 35, page 22, line 40, leave out ‘civil’ and insert ‘criminal’.
No. 21, in clause 35, page 23, line 1, leave out subsection (2).
No. 22, in clause 35, page 23, line 3, leave out subsection (3).

James Brokenshire: I fear that we may be going over some old ground, but I hope that, at least, we will do so in a slightly different way, rather than simply repeating some of the arguments that have probably been rehearsed in great detail in relation to this issue, which centres on whether the orders that are to be sought under the Bill are of a civil nature or otherwise.
Clause 34(1) states:
“Proceedings before the High Court in relation to serious crime prevention orders are civil proceedings.”
We have obviously debated previously the issue of the standard and burden of proof associated with these orders and reference has been made to the McCann judgment as it applies to antisocial behaviour orders. In particular, we debated whether the McCann judgment would operate in relation to the orders that are envisaged under this Bill, and therefore whether what has been termed the heightened civil standard might apply.
I note that the Minister and his colleagues have said that that is the intention behind the drafting of the Bill—that although it is stated as being a civil order and although it is stated that the court should apply a civil standard of proof in relation to serious crime prevention orders, it is understood that, following the McCann judgment, in essence a higher standard would, notwithstanding, still be applied in accordance with the terms of that judgment.
I suppose that we come back to some of the fundamental issues and also to trying to provide some sort of certainty in relation to the Bill, to understand very clearly what is intended. The judgment of Engel v.The Netherlands (No. 1) in the European Court of Human Rights effectively established three standards to determine whether proceedings are regarded as criminal for the purposes of the European convention. That judgment said that there are effectively three tests: the domestic classification, in other words what the domestic law classifies the proceeding as; the nature of the offence, and finally the severity of the potential penalty that the defendant risks incurring. The Engel case was referred to in the leading judgment in the McCann case, when it was suggested that the third factor—in other words, the severity of the potential penalty—was the most important factor in determining whether a matter was regarded as criminal.
If we are saying that a higher standard is being applied in relation to ASBOs and one then looks at the potential impact of orders under this Bill, I thinkthat it is accepted—even if there is a difference asto whether such orders are a punishment or a prevention—that they are potentially very significant, in terms of their ambit, scope and impact. Therefore, if the suggestion is that the potential penalty is the relevant factor in deciding whether a matter is regarded as criminal or not, I would submit that there is a very strong argument for saying that this matter should be regarded as criminal.
In the context of the McCann judgment and those relevant tests, for the sake of certainty and clarity about the standards that we seek to adopt, it would be better to include a measure in the Bill to make absolutely clear the burden of proof and the expected standards. Although I note what Ministers have said, there is still the potential for a legal argument about whether McCann applies, and if so, the way in which it applies in a given circumstance. The Bill is being introduced after the McCann judgment, and we do so in conscience and knowledge of what we are doing.
If the Bill says that the proceedings are effectively civil proceedings, and that as a consequence, the standard of proof that the court will apply is the civil standard of proof, notwithstanding the McCann judgment, it could be argued that, because of the decisions and wording in the Bill, we as Parliament are consciously determining that the McCann judgment should not apply. The Minister may say that that is not the intention, but it is better to be clear in law about what we are talking about, hence the reason for the amendment to clause 34 and the amendment to clause 35, which would state that the proceedings should be treated as criminal proceedings, and delete subsection (2) on the burden of proof.
I know that those arguments and issues have previously been debated differently, but it is right and proper that we are as clear as possible about the requirements for proof, particularly as a consequence of the potential penalties that may arise. To use the words of my right hon. and learned Friend the Member for Sleaford and North Hykeham, if it looks like a duck, perhaps it is a duck. If that is the case, and we are considering a criminal issue, let us put it in the Bill, so that the courts are certain and we are certain about what we are discussing.

Douglas Hogg: I rise to support the amendments in my name, and to reinforce the speech that my hon. Friend the Member for Hornchurch made. It is worth considering what the clauses say. Clause 34(1) says that the proceedings are “civil proceedings”, not criminal proceedings. Subsection (2) states that
“the standard of proof to be applied by the court in such proceedings is the civil standard of proof.”
I shall pause at that point. Anybody who comes to the Bill afresh, and without any background knowledge at all, will conclude that clause 34 means what it says, namely that for all purposes the proceedings are to be deemed civil, and that the standard of proof is to be that of the civil court. That is what it says.
It is of course true that the courts will approach the matter in the context of the McCann judgment, which is the judgment of the House of Lords. However, let us begin by reminding ourselves that the House of Lords determined that approach in a particular fact-related case, namely McCann, and it construed an ASBO, not a serious crime prevention order. It is possible—it may even be likely—that the courts would apply to the serious crime prevention orders the kind of reasoning that they applied to ASBOs, but there is no certainty that they would. Why should we assume that the courts will give to the phraseology in clause 34 a different interpretation from that which appears in the Bill? There is no certainty of that, and my hon. Friend the Member for Hornchurch makes a very sound point. The courts will take into account the fact that Parliament is acting against the background of knowledge of the McCann case—in fact they might assume that we are putting this clause into the Bill so as to disapply the approach that was taken in relation to that judgment.

Kali Mountford: Is not the point—perhaps this goes back to this morning’s debate—that for this to be a criminal proceeding, a crime must have taken place, and we must be considering a criminal case? In fact, this is about a prevention order, so it must be a civil matter. Surely I have not misunderstood.

Douglas Hogg: Our primary concern is with the consequence of stating that the matter is civil rather than criminal. Looking just at the Bill and leavingaside McCann and the underlying judgments, the consequence is that the standard of proof is different—it is the balance of probabilities, not beyond a reasonable doubt. Also, although less so than before the Criminal Justice Act 2003, fundamentally different rules are applied to hearsay and there are other differences between the jurisdictions. Once we assert in the Bill that it is a civil proceeding, if we do not apply McCann we have a different standard of proof. That is what is objectionable having regard to the severity and the onerous effect of the orders and everything to do with renewal.

Jeremy Wright: Would my right hon. and learned Friend agree that it is more complicated even than that? Not only do we have the indication of the McCann judgment compared with what the clause says, but there is also what the Minister has said during our deliberations in Committee, namely that the standard of proof should be almost identical to the criminal standard. There is an extra layer of confusion, which we ought to resolve by changing the Bill.

Douglas Hogg: That is true. Similar language was used in the other place, where the Minister said “virtually the same”, “nearly the same” and so on.
Another important point, which has been made in this Committee before and which partly answers the hon. Member for Colne Valley, is that we need to look at paragraph 3.4 on page 32 of the Green Paper, which was published after the McCann judgment. It says:
“We believe these...standards usefully reflect the different levels of threat posed to society by terrorism and anti-social behaviour. In the case of organised crime, the potential harms are somewhere between, and we would envisage stating on the face of the legislation that to impose an order the courts should be satisfied on the balance of probability that the test is met.”
Let us pause there; this is very important. We appear to be putting in the Bill precisely what the Government say in page 32 of the Green Paper that they want to put in. The motive for that is stated explicitly. It is in order to impose a test and that
“the courts should be satisfied on the balance of probability”
that that test is made. When the courts come to construe this, they will start by looking at the language of the Bill. They will see that the burden of proof is a civil burden; then they will ask, “What about McCann?” They will then go—or feel able to go—to the Green Paper, because it pointed, at least at one stage, to the Government’s intention.
They will see that the Government have taken account of the McCann judgment and have decided that they want to disapply it, and that they intend to do so in the Bill. Lo and behold, there is language in the Bill that purports to have that effect. I should have thought that the courts would be very constrained not to hold that the standard of proof was that requiredin the ordinary civil case, namely the balance of probability.

Vernon Coaker: I have often been asked by the right hon. and learned Gentleman to read things into the record because, he says, that is extremely importantin terms of how the courts will interpret the Government’s intentions behind legislation. The right hon. and learned Gentleman has heard me say on numerous occasions—Baroness Scotland said this in the House of Lords as well—that we expect the civil standard of proof required under clause 1(1)(a) to be as close as to be virtually identical to the criminal standard of proof; in other words, beyond reasonable doubt. We have said that the McCann judgment will be applied on a sliding scale; the standard here will be “beyond reasonable doubt”, but in other parts of the Bill, it might be “on the balance of probability”.

Douglas Hogg: I have no doubt that, when appropriate, the courts will listen carefully to what the Minister has said. It is important, however, to keep in mind that the courts, as a general rule, look only to the words of Ministers when there is ambiguity in the language of the statute, but it is far from clear that there is ambiguity in the language of the statute before us; the language is clear and the statute is being enacted post-McCann. In other words, it could well be argued that we are seeking explicitly to depart from the consequences of McCann. That was the point made by my hon. Friend the Member for Hornchurch. I think that he is right.
I recognise the alternative argument: the concept of the civil standard of proof being applied on a sliding scale to such cases approaching criminal ones. However, that arises, first, if the court thinks that the language is not plain, and secondly, if it thinks that the principles set out in McCann apply to a different class, but not wholly dissimilar kind of order. We are making some assumptions about that. That takes me to the real point on which I want to focus. Given that the Minister’s purpose, as I understand it, is to depart from the language of the Green Paper and to assert the criminal standard, why on earth are we not saying so? I come back, time and time again, to my underlining theme—I am sorry if I am being a bore—that it is the business of Parliament, of which this Committee is a part, to state what it intends. If it intends to protect the citizen, it should say so in terms and not leave a cloud of ambiguity and uncertainty hovering around such matters. I ask the Committee to think again.
Incidentally, if I had had the opportunity, I would have made this point during the Prime Minister’s statement: if we are giving authority to Parliament over the Executive, it is all well and good, but actually none of his proposals will be of much relevance, unless or until Members of this House begin to assert their independence from their own Whips Offices. I did that years ago!

Joe Benton: Order. I do not think that we should have a repeat of this.

Douglas Hogg: I am not just semi-detached; I am in a different estate.

Crispin Blunt: Just be careful; you are from Lincolnshire.

Douglas Hogg: Lincolnshire is a very independent-minded county, as we saw to our cost four or five days ago. But that is a different matter.
The point is that if I am right about this—and I think that I am—it is the business of hon. Members to assert those principles, notwithstanding advice from their Front-Bench colleagues. It is in that collegiate spirit of trying to capture in the votes that I hope the Committee will approach this matter.

Geoffrey Cox: It is in the spirit of asserting my independence as a Back Bencher that I disagree, with diffidence, with my right hon. and learned Friend. The Minister will no doubt tell us that the courts are likely to apply a higher standard of probability to the findings of fact in fraud or criminal cases, for example. I concede that almost certainly that will be the case. Under the common law, the courts have long operated a sliding scale of probability, depending upon the nature of the allegation. I would be astonished if the courts decided, under clause 1, to apply a different test.
At the risk, however, of having already gone too far in disagreeing with so venerable a colleague as my right hon. and learned Friend, I am about to add a “but”. I agree with him that a standard of probability is still a standard of probability, but whereas a jury would be asking, “Are we sure that this man is guilty of this crime? Are we certain that he has done what the prosecution says he has done?”, a judge will ask himself or herself an entirely different question: “Even though this is a serious allegation, do I have a high degree of confidence that it is more likely than not that he has done what the director of the Serious Fraud Office, for example, has said?”
That test cannot be converted into the test of reasonable certainty that a jury applies in a criminal case. It is simply playing with language, a matter of pure semantics, to suggest that the test adopted in McCann is equivalent or analogous to the test adopted by a jury in a criminal court.

Douglas Hogg: My hon. and learned Friend is entirely right, but the test could be put slightly differently. In a criminal case it is, “Are you sure?” In this case, a judge would be saying “Am I virtually sure?” Those are not the same.

Geoffrey Cox: No, because in one case the High Court judge can say to himself, “I am not sure that this man has done what the director has said.” The directors of Revenue and Customs or the Serious Fraud Office are the type of people who will come to a judge asking for an order. The judge will be able to say, “I am not sure that he has done it, but I am confident that it is highly likely that he has,” and that will be sufficient. That will be the test, and I concede to the Minister that, at least when making the final inference on criminality, a judge is likely to consider whether the person in question is highly likely to have done what the director says, not whether he is sure. That is not the same test, and, with respect, whatever the Minister reads into Hansard, which will be looked at only in extremely rare cases under Pepper v. Hart, I do not suppose that his words—

Vernon Coaker: The only reason why I read it into Hansard was that the right hon. and learned Member for Sleaford and North Hykeham told me in relation to a number of other matters that it was extremely important for me to read such things into Hansard. I am not a barrister and I do not know about courts, but I was told that that was an important thing to do.

Geoffrey Cox: My right hon. and learned Friend is not right about everything.

Douglas Hogg: You are taking liberties!

Geoffrey Cox: I am. He is right about most things, but it is unlikely that a court would resort to Hansard to interpret what seems a straightforward clause that it could make sense of under the ordinary rules of common law and statutory interpretation.

Crispin Blunt: I am following carefully my hon.and learned Friend’s arguments on this extremely important point. Not being a lawyer, I had understood that there was a civil test and a criminal test—one on the balance of probabilities and one on proof beyond reasonable doubt. The Minister has referred to a sliding scale and my hon. and learned Friend says that that concept exists. My concern about the Minister’s remarks and the comments in the Green Paper is that the sliding scale works in reverse of what one would expect, so that the more serious the offence, the more likely it is that a lower standard—

Joe Benton: Order. That was a slightly lengthy intervention.

Geoffrey Cox: I understand my hon. Friend’s concern, but, with respect to him and to my right hon. and learned Friend the Member for Sleaford and North Hykeham, I do not think that that is a serious problem. There will be a sliding scale of probability and when considering the criminal aspects of an allegation the judge will ask himself, “Is it highly likely that this man did it?” However, he will not ask himself, “Am I sure he did it?” Those two tests are fundamentally different. One cannot equate one with the other. There is a gulf a mile wide between them.
The reason why our criminal trial process insists on the latter test—namely, “Am I sure he did it beyond reasonable doubt?”—is to avoid the many terrible miscarriages of justice that have been brought to the public’s attention during the past 20 or 30 years. Certainty—being sure beyond reasonable doubt—eliminates the prospect of injustice, especially when the penal consequences of such a finding are so serious. It is important to understand that there is a genuine difference.
The contention is made that the order is not a penal statute. It is suggested that it is a civil order and that it would be an exercise of civil jurisdiction. The Minister needs to consider closely the advice that he receives. The reality is that the European Court of Human Rights will limit the number of consequences ordinarily following upon conviction that can be imposed as a part of a civil process. There will come a point when the Court will say, “You are doing so much to this person, based on the civil standard of proof, that although you call it a civil process it is in truth penal.”
The European Court of Human Rights has already said that about the legislation of other European countries. In my judgment, there is a real risk that the Bill will be determined to be a penal statute because of the number of consequences that could flow froman ordinary conviction. [Interruption.] Before the Minister or the hon. Member for Colne Valley intervenes—in fairness, I should give way first to the hon. Lady—may I make a final point?
The consequences of conviction would ordinarily mean restraint upon one’s liberty and peril to one’s assets, which can be seized. Those consequences will flow also from the order. It is often said in court that imprisonment has two purposes: a punitive and a preventive one. One could therefore apply the civil element to imprisonment. One could provide in statute that although the court would be allowed to imprison a person, it would be a civil proceeding.
If we went that far, I have no doubt that the European Court of Human Rights would say, “That is just playing with language. That is applying the civil term, whereas in substance, this is a criminal penalty.” I believe that this provision is in danger of a similar finding, because in substance it is penal. Every sentence of imprisonment has a preventive element. This has a preventive element, but it also has penal consequences.

Kali Mountford: I am grateful to the hon. and learned Gentleman for giving way. I think that he is attempting to answer my question before I put it. He keeps saying, “Has he done it?” and asking whether the court will answer that question. The court would have answered that question when the person appeared before it for the original offence. The order is about future behaviour, and whether the order will prevent ongoing criminal behaviour. It is not punishment for the original crime. Is that not the case?

Geoffrey Cox: Illumination dawns about what the hon. Lady’s problem is. [ Laughter. ] I do not mean generally, but in relation to the Bill. If she returns to clause 2, she will see that the individual who is to be the subject of an order must have
“committed a serious offence in England and Wales”.
That is one thing. The proof of commission of a serious offence, as I recollect, is that such a person has been convicted of the offence.
However, subsection (1)(b) states:
“has facilitated the commission by another person of a serious offence”.
That does not require a conviction. Nor does subsection (1)(c), which states:
“has conducted himself in a way that was likely to facilitate the commission by himself”.
That is a meaningless subsection: I do not know how somebody conducts themselves in a way that is likely to facilitate the commission by themselves of a criminal offence. However, that does not require a conviction, so I say to the hon. Lady that under the Bill, people can be brought to court to be subject to a serious crime prevention order who have never been convicted of a criminal offence in their lives.
It would have to be proved—it would have to be established—that in the past the person had, for example, conducted himself in a way that was likely to facilitate the commission by another person of a serious offence, but he would not have had to be convicted of such conduct.

Joe Benton: Order. I am sorry to interrupt the hon. and learned Gentleman. I do not want to curtail the debate and I want to allow hon. Members to exercise as much freedom as possible, but it occurs to me that we are going round the houses a bit. Points are being made over and over again. I appeal not only to the hon. and learned Gentleman but to the entire Committee to try not to be repetitive, because it is clear to me in the short time for which the Committee has been sitting this afternoon that some of the points being raised were raised on previous occasions when I was in the Chair.

Geoffrey Cox: Forgive me if I have sounded repetitious, Mr. Benton. I was not in Committee this morning, so I do not know what you covered; I was merely answering the hon. Lady’s question. She is labouring under the misapprehension, as I see it, that somebody would have to have a criminal conviction first; however, they do not. That is why the clause with which we are dealing, on the burden and standard of proof, is in my judgment so dangerous. It allows somebody to be open to one of these orders—which are classed as civil and said only to be preventive, but which are really penal in nature, because of the potential consequences that would flow from them—on the civil standard of proof, which, however one may strain to approximate it to the criminal, simply falls far short of it.
The Committee is invited to pass in the clause a provision that allows somebody to have their liberty essentially removed and their assets stripped from them when a judge is not sure that they have done what they are said to have done, or that they will go on to do anything else like it. That is a very grave step. I say to the hon. Lady and to other Government Members that that has not, in 300 or 400 years of the development of the law, ever been deemed to be wise. It has always been regarded in the past as a step utterly inconsistent with the principles of the common law that guarantee our liberties.
Government Members must be certain in takingthis step that it is justified by proper arguments advanced by the Government, but what are they? The consultation paper does not reveal compelling arguments, in my judgment, for the imposition of so grave and so significant an order as this on the slender basis of a judge thinking that it is more likely than not, or even highly likely, that a man has done something like this.
I ask the hon. Lady, for whom I have the greatest respect, to reflect. Suppose that she puts herself in the position of a friend, cousin or neighbour—somebody whom she knows well—who is subjected to an application of this type because, at some time in the past, they may have acted in a way that was likely to facilitate the commission of a crime by another. The evidence is put forward and the judge has only to say, “Well, it’s more likely than not that he has acted that way.” I think that the hon. Lady is likely to be very concerned about that. Merely because it is the policy of the Government whom she supports does not mean that we should not question it, as my right hon. and learned Friend the Member for Sleaford and North Hykeham said.

Crispin Blunt: When the Minister responds, I shall want to be clear on the issue of the sliding scale. I approach the issue not as a lawyer, having understood until I became a member of the Committee that the burden of proof was either the criminal one or the civil one that is based on the balance of probabilities. We have debated the sliding scale, but I would like the Minister to make clear to me, a non-lawyer, exactly what it means. As I understand it, it was introduced by McCann.

Douglas Hogg: No, it existed before that.

Crispin Blunt: I might be wrong—it may have existed before. Nevertheless, I should be grateful if the Minister gave us some guidance on the meaning of the sliding scale and tell us where it comes from in the Lords. It is a new concept to me. If the sliding scale comes just from McCann, the Minister can say so, and if there are other underlying sources I should be grateful for an explanation of them.
If we are to have a sliding scale, we need to consider in which direction it goes. Does it mean that, the more serious the offence, the closer the burden of proof comes to the civil standard—the balance of probabilities—and that for less serious offences the burden of proof is the higher, criminal one? Serious potential offences might justify a lower standard of proof because of the threat that they present to society. That is where I understand us to be at the moment. Terrorism prevention orders are assessed on the balance of probabilities, whereas, under the McCann judgment, antisocial behaviour orders require a higher standard of proof.
I ask the Minister to try to ensure that, when we come to a decision, I as a non-lawyer am no longer unclear about the situation, because I suspect that one or two of the more learned hon. Members in the Committee might share my lack of clarity. I am quite certain that the Minister will be able to give an explanation that will be clear to a layman.

Joe Benton: Before the Minister replies, let me say that it will be in order for him to do so, although the matters in question have already been referred to. I ask the Minister to keep his replies brief in relation to those matters on which he has already responded.

Vernon Coaker: I will try to do that, Mr. Benton, and if I do not you will no doubt quickly call me to order. Let me thank my hon. Friends and Opposition Members for their contributions to the debate, because they went to the heart of this aspect of the Bill. We have been over much of the ground already, but it is relevant to clause 34 and indeed clause 35. Let me see whether my remarks can help, although at the end of the day it might well be that there is simply a difference of view in the Committee. I say that as someone who is a non-lawyer as well. Sometimes people make judgments rather than having scientific views on whether two plus two makes four.
We have already discussed the civil nature of the orders at some length, so I shall not go into great detail on amendments Nos. 18 and 22, which would change their nature. Suffice it to say that the orders are preventive, not punitive, so that making the proceedings criminal would be hugely inappropriate.
The point made by the hon. Member for Reigate goes to the nub of the matter and I shall come to it in a moment. The appropriate standard of proof is the flexible civil one, which we expect—in relation to the first element of the test in clause 1—to be the same as the criminal standard established by the House of Lords in McCann.
 Mr. Hogg rose—

Vernon Coaker: I just need to develop my explanation, and then I shall give way to the right hon. and learned Gentleman. The sliding scale was not introduced by McCann. I know that he did not mean to do so, but, with respect, the hon. Member for Reigate got it the wrong way round. The more serious the allegation, the higher is the standard of proof. Involvement in serious crime is a serious matter, and will require a very high standard of proof. The sliding scale is a general principle of civil proceedings.
The point is an important one, so with permission, Mr. Benton, I should like to indulge in a slightly lengthier explanation. It is virtually certain that the standard of proof that would be needed under clause 1(1)(a) to satisfy a High Court
“that a person has been involved in serious crime (whether in England and Wales or elsewhere)”
would be almost the same as the criminal standard. In other words, it would have to be proved beyond reasonable doubt.
Clause 5(2)(a) refers to
“any act that the respondent can show to be reasonable in the circumstances”.
In those cases we would expect the standard of proof to be the balance of probability. Therefore it is perfectly reasonable for a judge in the High Court to distinguish between those two parts of the Bill. As the right hon. and learned Member for Sleaford and North Hykeham pointed out, the sliding scale is not a novel idea for the High Court. It uses it as a matter of course in civil proceedings. It is not new; it has not arisen as a result of McCann. McCann has tried to clarify the situation with respect to civil orders.

Douglas Hogg: I understand the Minister to say that in the majority of cases where the consequences are serious he expects something like the criminal standard. He will say that that follows from the ordinary principles of law. But he must look at page 32 of the Green Paper. The Minister says that it his intent that prevails and I’ll accept that for these purposes. But the Green Paper was drafted by the lawyers, and they thought that one could get the balance of probability as the test, notwithstanding McCann. That is a serious problem which he has to face.

Vernon Coaker: That may have been in the Green Paper, but I am trying to make clear to the Committee what the Government expect, not as a result of what was in the Green Paper, but as a result of this Bill and the various comments that I and others have made here and my noble Friend Baroness Scotland made in the other place.
I should like to quote from the McCann judgment. Lord Steyn said:
“Having concluded that the relevant proceedings are civil,in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary”.
Lord Hope said:
“But it is not an invariable rule that the lower standard of proof must be applied in civil proceedings.”—
Again, the point that the hon. Member for Reigate made—
“I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.”

Jeremy Wright: I am grateful to the Minister for giving way. I understand that he is attempting, as did his ministerial colleagues, to provide as much clarity as possible. But surely when people come to look at this legislation they will start with the Bill and then, perhaps, they will look at what he said in Committee. He said almost everything that the amendment sets out to achieve. I simply do not understand, and I am fairly sure that people outside the House will not understand, why he cannot just put what he has said, or some variation of it, into the Bill. There is confusion between what he relied on in clause 1(1)(a), which is to say that the High Court must be satisfied, and saying that the civil standard of proof must be applied. The simple way around this is to set out exactly what the Government wish the courts to do.

Vernon Coaker: I shall simply repeat what we have said ad nauseam. There is a difference of view. We do not think that it is necessary for that to be on the face of the Bill. I have laid out what the Government expect with respect to the standard of proof and serious crime prevention orders. Indeed, even the hon. and learned Member for Torridge and West Devon has accepted that High Court judges are used to dealing with the sliding scale with respect to the standard of proof in civil proceedings. That is what we would expect. The McCann judgment clarified that the more serious the offence, the higher the standard of proof that one would expect to be necessary for the court to be convinced of anything. With respect to clause (1)(1)(a) one would almost expect it to be virtually identical to the criminal standard.

Geoffrey Cox: I agree with almost all of what the Minister said, except that even the heightened civil standard is nowhere near the criminal standard of proof. The heightened civil standard simply asks, “Is it much more likely than not?” The criminal standard asks, “Is it certain?” The ordinary civil standard is, “Is it more likely than not?” Hon. Members can work out for themselves the differences between those tests, but that is the situation.

Vernon Coaker: The hon. and learned Gentleman makes his point and people will have to make up their mind where they stand on the issue. As I said, our view is that the standard of proof is a sliding scale, which is flexible, and which will be applied appropriately by the High Court.
To finish my remarks, the key question in determining whether a measure is civil or criminal is whether it is preventative or punitive. As Lord Hope made it clear in the McCann case, if a measure is preventative it is likely to be classified as a civil measure. The reason why the Government believe that the orders are civil measures goes to the heart of the Bill which, as my hon. Friends have said in our debates today, is about preventing serious crime, supporting victims and putting them first.
The hon. Members for Taunton and for Hornchurch talked about penalties. These measures are not penalties or punishment for past crimes; they are about preventing crime, and harm, in the future, and the vast majority of our constituents would want us to put in place measures that do that.

James Brokenshire: It is clear that there is a divergence of view, and I am not going to prolong the debate any further to try and bridge the gap, because it is there. It is fine for the Minister to say, “This is about the prevention of crime,” but we need something that is clear, that will work, and which the courts will ensure is robust; that is what the amendment would ensure, and I am disappointed that the Minister has turned his face against it. The best way for the House to ensure that there is clarity for the courts in understanding how a Bill is intended to operate in practice is by the language on the face of the Bill and I am sorry that the Minister does not accept that logic. I will test the Committee’s appetite for the provision because it is so important, by dividing the Committee on the amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived.
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendment proposed thereto, forthwith put the Question, pursuant to Standing Order No. 67, That the clause stand part of the Bill.

Question agreed to.

Clause 34 ordered to stand part of the Bill.

Clause 35

Proceedings in the Crown Court

Vernon Coaker: I beg to move amendment No. 50, in clause 35, page 23, line 9, leave out subsections (4) and (5) and insert—
‘(4) The Crown Court, when exercising its jurisdiction in England and Wales under this Part, is a criminal court for the purposes of Part 7 of the Courts Act 2003 (c. 39) (procedure rules and practice directions).’.
I apologise to the Committee for having to amend the Bill to clarify which rules committee should make procedure rules in relation to the operation of orders in the Crown court. After further consultation within Government, we have concluded that it would more administratively convenient for the procedure rules in relation to orders made in the Crown court to be made under the provisions of the Courts Act 2003, as that is where the rules in relation to other civil orders on conviction will be made.

James Brokenshire: In the context of the previous debate, I rise to highlight the strange irony that the amendment should say that the Crown court is to be termed a criminal court for the purposes of clause 35, notwithstanding the fact that we are apparently talking about civil orders and a civil burden of proof. However, I note what the Minister said about the operation of the orders, even if there is some irony in the relation to the wording proposed.

Amendment agreed to.

Clause 35, as amended, ordered to stand part of the Bill.

Clause 36 ordered to stand part of the Bill.

Schedule 2

Functions of applicant authorities under Part 1

Douglas Hogg: I beg to move amendment No. 133, in schedule 2, page 54, line 28, leave out paragraph 2.

Joe Benton: With this it will be convenient to discuss the following amendments: No. 134, in schedule 2, page 55, line 26, leave out paragraph 7.
No. 135, in schedule 2, page 56, line 17, leave out paragraph 13.
No. 136, in schedule 2, page 57, line 1, leave out paragraph 17.

Douglas Hogg: Amendment No. 133 is not a minor amendment; it is, I hope, an important amendment. We have been over the nature of the orders many times—how wide ranging and draconian they are, the limited protection given to the citizen, the fact that they are renewable, and the rest of it. Some members of the Committee might have taken comfort from the fact that under clause 9 an application can be made by only a limited number of individuals—the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions, the director of the Serious Fraud Office and, in the case of Northern Ireland, the Director of Public Prosecutions for Northern Ireland. On the face of it, therefore, the central and important distinctions are being made at a very high level of administration.
That is the comfort that some members of the Committee might have taken from clause 9. However, I wonder whether they should have drawn such comfort, because in schedule 2, under paragraphs 2(1) and 2(2), paragraphs 7(1) and 7(2) and paragraph 17, the powers can in fact be delegated downwards to a relatively low level. So far as the powers of the Director of Public Prosecutions are concerned, paragraph 2(2) says: “References...to the Director” can be deemed to be
“references to...any Crown Prosecutor.”
Paragraph 7(2) says: “References...to the Director”—that is, the Director of Revenue and Customs Prosecutions—may be deemed to be
“references to...any Revenue and Customs Prosecutor.”
Similarly, paragraph 17, which refers to Northern Ireland, says: “References...to the Director” will be
“references to...any Public Prosecutor.”
The important point, which I have made already, is this. If we give powers to an official, we can be quite sure that those powers will from time to time be abused. When the powers are set a level at which the powers in question have been set, it is important that they should exercised at very high administrative level. I am very far from happy—indeed, I am extremely unhappy—that the powers to make applications that could lead to such draconian consequences should be entrusted to officials of fairly modest standing. That is not right.
That concern is reinforced by the fact that the Minister has told us on several occasions that we should expect only a limited number of applications to be made—he said that the regulatory assessment had suggested 30 orders a year. We are dealing with four jurisdictions—Northern Ireland, the Revenue, the DPP and the Serious Fraud Office. We are talking about only four, five or 10 applications per director, so why on earth can not it be confined to the director himself or herself, rather than being entrusted to a relatively junior official.
I hope that the Committee will reflect on those points and decide that applications of this kind, which are serious in their potential consequences, should be confined to senior officials, together with all the other consequential decisions that are referred to in, for example, paragraph 1 of schedule 2.

Vernon Coaker: Either the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions or the director of the Serious Fraud Office must make the specific decision to delegate. It will not happen automatically, as the right hon. and learned Gentleman implied. It will be a positive decision.
Schedule 2 sets out the functions of the applicant authorities in relation to part 1 of the Bill. The amendments all relate to the powers of the directors of the four applicant authorities to delegate the exercise of their functions in relation to serious crime prevention orders to members of their respective organisations. Those powers have been included because we want the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions and the director of the Serious Fraud Office to be required to make a decision to delegate to a member of their staff rather than the delegation happening automatically.

Douglas Hogg: Clause 9 states:
“A serious crime prevention order may be made only on an application”,
but the effect of paragraphs 2(1) and (2) of schedule 2 is that the conduct of applications can be delegatedto a Crown Prosecutor. In other words, the Crown Prosecutor, in contrast with the director, has all the consequential decisions to make, as he has the conduct of the application.

Vernon Coaker: My point is that it would not be automatically delegated—

Douglas Hogg: No, it is not automatic.

Vernon Coaker: But once delegated, those prosecutors would, to all intents and purposes, be the applicant authority. I accept that point. However, as well as being under the control of their own directors, the right hon. and learned Gentleman will have noted that paragraph 3 of schedule 2 states:
“The functions of the Director under this Part are exercisable under the superintendence of the Attorney General.”
It is not only that the director of the specific prosecution agency will ensure that things are done properly; the Attorney-General also has a responsibility.
If the amendments were made, the directors would need to fall back on their existing powers of delegation. In some cases a director might be left without any power of delegation and in others delegation would happen automatically. It would be impractical to ask the directors of each of the three organisations to carry out those functions personally, even for the relatively small number of orders that we anticipate. Instead, those functions will be carried out by specifically and specially trained members of their respective organisations, all under the superintendence of the Attorney-General, as also specified in the schedule.

Crispin Blunt: We had a discussion about the application of the orders to prisoners who come out of prison having been sentenced for a serious crime. Instead of there being 30 cases a year as under the impact assessment, there could be 30,000. I imagine that that is the sort of number of people leaving prison after being convicted of serious crimes every year, so it would become an automatic part of the process when the powers are delegated. Can the Minister say anything to comfort me that the powers will be delegated only in a way that will not lead to an automatic post-imprisonment process, and that a suitable order is applied to everyone who leaves prison having been convicted of a serious crime?

Vernon Coaker: Obviously, only an appropriate order would be allowed by the court. That would be part of the process. We came to the number 30 as a result of an assessment of the number of orders that we thought would be made in any one year. That was in the regulatory impact assessment, and it is our best assessment of the number of orders. We do not in any way expect there to be 30,000; the orders will deal with very serious criminals and very serious crime.
The hon. Gentleman almost seemed to suggest that a director might go willy-nilly for a serious crime prevention order. I hope that he will find the comfort that he seeks in the fact that that simply could not happen. A director doing that would be not only subject to the normal processes within their own agency, but under the superintendence of the Attorney-General—who would be the governor, if you like, of the prosecuting agencies. Before the issue got to court, the Attorney-General would see that going willy-nilly for such an order was not appropriate and reasonable. If someone seeking an inappropriate serious crime prevention order got it to court, the court would simply not allow it to be made.

Daniel Rogerson: The Minister has painted a picture of the powers being included in the Bill for operational reasons—in other words, they would give various organisations the capacity to function and the director would not have to have direct responsibility, although they would ultimately take the decision.
However, I envisage a case in which the decision that such an order might be desirable to the agency in question came from below—came to the director, who then signed it back down to someone below. In other words, we are increasing the capacity for the number of orders to multiply, much as the hon. Member for Reigate suggested.

Vernon Coaker: To clarify the position for the hon. Member for Reigate, I should say that we estimated that there would be approximately 30 cases. That estimate of need came from the various branches of law enforcement. We believe that it is appropriate for the director of the prosecuting agency to be able to delegate to a specific, specially trained member of staff. However, such a staff member will not simply be able to decide to apply for the order, just because the issue has been delegated down. The decision would have to be proportionate and reasonable—otherwise, the court would simply not allow it.
The position of the Director of Public Prosecutions for Northern Ireland is slightly different. The Bill does not give him a power of delegation; his powers to delegate under section 36(1) of the Justice (Northern Ireland) Act 2002 will be relied on. Paragraph 17 to schedule 2 of the Bill makes the position clear. I hope that, for the reasons that I have outlined, the hon. Gentleman will withdraw his amendment.

Jeremy Browne: This is the first time I have spoken this afternoon, so I welcome you to the Chair, Mr. Benton. If the right hon. and learned Member for Sleaford and North Hykeham is minded to press the amendment to a Division, we shall support him for the following reasons. There is confusion in the Government about how many people will be affected annually by the orders. The figure 30 keeps being presented. One could say that a point of principle is involved, that the numbers are neither here nor there and that one is either in favour of the principle or not.
However, the public will perceive that the number of people affected each year is significant. The Minister seeks to reassure us that the orders are reserved for the tiny number of real Mr. Bigs, the real problem people; 30 is the figure that he keeps citing. However, when Government Back Benchers make interventions, they always say, “This Bill will go down extremely well in my constituency because of all the people committing antisocial acts on various housing estates.” They say how much they will appreciate the Bill. However, there are 646 Members of Parliament, I think. On the basis of 30 a year, a person will be affected in each constituency only about every two decades. The effect on those hon. Members’ constituencies will not be as profound as they seem to think.
Chris Ruane (Vale of Clwyd) (Lab) rose—

Jeremy Browne: If an 18-year-old is causing trouble, in, for example, the constituency of the hon. Gentleman to whom I will give way in a moment, if the Government go through 30 cases a year, that 18-year-old will be knocking on 40 by the time a serious crime prevention order is put in place.

Chris Ruane: Is the hon. Gentleman aware that the 30 super-criminals of whom we are talking spread their power, or tentacles, over many constituencies and across whole cities, communities and regions? It isnot just one bad person, or super-gangster per constituency. The reach of such people is far and wide, and often they reach into our communities—the poorer communities—and Labour constituencies, which is why Labour Members are concerned.

Jeremy Browne: I am grateful to the hon. Gentleman for making that point, but if we are talking about such a small number of people, he will have no difficulty in supporting the amendments. There is no need to delegate the power to make a decision that is as infrequent as this one will be—roughly 30 people a year. The concern is that if we do not pass the amendments, there will be a machine somewhere within Government signing the orders through on a regular basis.
The hon. Member for Reigate made a point about people who are released from prison having orders imposed upon them as a matter of routine. We are told that 30,000 is an excessive number and it will not be of that order, but that 30 is a reasonable estimate. However, this is the same Government who made an estimate about the number of Polish people coming to work in the United Kingdom.

Vernon Coaker: I will ignore the last remark. I say to the hon. Gentleman that this is an extremely important point, about which I do not want there to be any misconception. The Government do not sign through serious crime prevention orders; it is the courts that do so. Whatever else we have said in Committee and whatever disagreements there have been, the courts will make the decision about whether a serious crime prevention order should be made or not.

Jeremy Browne: I am grateful for that intervention. Of course the courts will make the decision, but the application is made by an agency of the Government and this is a Government Bill.
In conclusion, if Members think that 30 is a realistic assessment of the numbers of people who will be affected annually, it is perfectly reasonable that the decision is taken at a higher level and that these amendments are supported on a cross-party basis. If they are not, one must make the reasonable assumption that the 30 figure will not apply in practice, if and when the Bill becomes law.

James Brokenshire: This interesting debate has highlighted concern about the application of the orders and the way in which they will be sought and operated. Conservative Members accept that there must be an element of delegation by the authorities to makethe system work appropriately, but that does not undermine the importance of the concern that if the orders are as serious as the Minister has suggested and if they are only intended to be used in a limited set of circumstances, we must ensure that there are clear lines of communication and that clear steps would be taken to ensure that control was exercised and decisions were made at an appropriate level. Doing so would denote the seriousness of the orders that we are talking about.

Geoffrey Cox: Does my hon. Friend accept that there is nothing in the Bill that mentions super-criminals, there is nothing in the Bill that says there will be only 30 applications and there is nothing in the Bill that would necessarily or logically imply that the orders will be applicable to only 30 people? [Interruption.] The Minister smiles, but I have seen this happen before. Legislation is passed, teams are set up in all the prosecuting departments and it becomes self-generating. It will be—

Joe Benton: Order. I remind the Committee that the Minister has already replied to the debate. The proper sequence should have been for the hon. Member who spoke before to speak before that, but the timing was not quite right. I do not want to repeat things, but the Minister has already replied. It would be helpful if we could move along and the mover of the amendment could indicate whether he will withdraw it.

James Brokenshire: Thank you, Mr. Benton. I shall take that advice. My parting comment, in the light of the intervention by my hon. and learned Friend the Member for Torridge and West Devon, is that there are clear reservations about the measures’ extent and application. I urge the Minister to consider again whether some greater comfort could be provided to make it clear that they are intended to operate only in limited circumstances and address within the Bill the concerns expressed about wide discretion.

Douglas Hogg: Having listened to the debate, it seems to me that there are merits on both sides. My hon. Friend the Member for Hornchurch and indeed the Minister have made the point that it is occasionally necessary to delegate. I understand that. A number of applications will be made to the court in the course of any proceedings that do not have to be made by the director in person and can probably be sensibly delegated down. On the other hand, given the relatively limited number of applications forecast by the Minister, a number of policy decisions relating to any one application should properly be made by the director.
The problem at the moment is that the director—I am referring simply to the Director of Public Prosecutions, although this is relevant to all the other enforcement agencies too—has complete discretion as to how much delegation should occur. I should be much happier if it were made plain in the Bill that only consequential actions should be delegated down, and that primary actions should be retained and confined to the directors in question.
It is not a total precedent, but the Minister will remember telephone tapping warrants. In my day, they were made in the Home Office by the Minister and not by officials. That may have changed, but it has always been recognised that some classes of order should be made exclusively at a very high level. I would like to think that he will revisit the matter to see whether we can construct a clause that reflects that.
I have one other point. The Minister draws comfort from the fact that the director’s functions are exercisable under the superintendence of the Attorney-General. I have never served as a Law Officer, but I was a Minister for a long time, and I can tell him that no Minister—for this purpose, I regard the Attorney-General as one—will exercise close superintendence over how the powers are used. It is possible that a discussion might take place at one stage between the director and the Attorney-General about the director’s general approach, but the idea that the Attorney-General will supervise every substantial order-making power is simply not right.

Vernon Coaker: We have disagreed on a number of things. The right hon. and learned Gentleman will have to press his amendment if he does not accept this.I shall consider his point, but—to be completely honest—without a commitment that anything will happen on Report. If he wishes to withdraw his amendment on that basis, that is fine. I cannot give him a firm commitment, but I will consider it.

Douglas Hogg: I accept that the Minister will considerit again. I recognise that he is not giving any commitments about the outcome of his considerations, but on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

Clause 37

Disclosure of information in accordance with orders

Jeremy Browne: I beg to move amendment No. 5, in clause 37, page 23, line 35, at end add—
‘(3) Notwithstanding this, the rules on admissibility of evidence to be observed in such proceedings shall be the same as those observed in trials on indictment; and no person shall be required in such proceedings to answer any question or to produce any document which he could not be required to answer or produce in similar proceedings in a trial on indictment.’.
I will be genuinely brief. The amendment would ensure a higher standard of evidence than the civil standard. You may feel that this subject has been discussed to your satisfaction, Mr. Benton, but let me take a little longer to clarify my point. We believe that the civil standard of proof—on the balance of probabilities—is not sufficient, whereas the criminal standard, beyond reasonable doubt, would offer greater reassurance. Baroness Scotland said in the other place that the likely standard of proof for the orders would be
“very close to the criminal standard of beyond reasonable doubt.” —[Official Report, House of Lords, 7 February 2007;Vol. 689, c. 729.]
I am not a lawyer, but I think that “very close” is an extremely loaded expression. It is hard to be confident about precisely what it will mean in practice. The amendment is yet another attempt to move the Bill towards firmer and more rigorous standards of evidence and proof.

Vernon Coaker: I ask the Committee to resist the amendment, which would change the rules regarding the admissibility of evidence in proceedings relating to an order from those that apply in civil proceedingsto those that apply in a trial on indictment. The amendment also seeks to provide that in proceedings for an order, the relevant person cannot be required to answer any question or to produce any document that they could not be required to answer or produce at such a trial.
The amendment is undesirable because the civil procedure rules already provide significant and wide-ranging powers to manage the evidence that will come before the court. The court is best placed to determine which pieces of evidence are relevant and should be admitted in proceedings and what weight should be accorded to each. The court will ensure that only relevant and appropriate evidence is admitted. It is both unnecessary and inappropriate to constrain that flexibility, and I ask the hon. Gentleman to withdraw the amendment. He went over some old ground in his comments, but these are civil orders, not a criminal penalty, so the strict rules of evidence that apply to criminal trials should not apply. Instead, the civil rules of evidence should apply, particularly in relation to hearsay.

Jeremy Browne: I would rather not withdraw the amendment, and should like to test the Committee’s view.

Question put, That the amendment be made:—

The Committee divided: Ayes 2, Noes 8.

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

James Brokenshire: I rise briefly to seek clarification and to ask the Minister to reconsider the drafting of the clause. Subsection (1)(a) provides that if an order requires something to be done, it is not, by virtueof the clause, intended to breach any obligation of confidence. However, subsection (2) appears to suggest that there might be an exclusion. It states:
“But see sections 12 to 15”,
which is slightly circular language. I therefore ask the Minister to reflect on the wording and to make it clear that the exclusions in clauses 12 to 15 override the provisions contained in clause 37(1).

Vernon Coaker: Of course, if the hon. Gentleman thinks that it is unclear, we will consider it.

Question put and agreed to.

Clause 37 ordered to stand part of the Bill.

Clause 38

Powers of law enforcement officers to retain documents

Douglas Hogg: I beg to move amendment No. 131, in clause 38, page 23, line 43, at end insert—
‘(1A) Where a law enforcement officer has retained an original document under subsection (1) he shall—
(a) on the request of the person who is the subject of the serious crime prevention order; or
(b) at the request of any person who was given the opportunity to make representations in the proceedings concerned by virtue of section 10(1), (2) or (as the case may be) (3);
provide that person with a copy of the retained document unless, on application of a person mentioned in this subsection, a court to which an application is made otherwise orders.’.
In Committee, we have debated many matters of principle, but this is a matter of detail. I might be wrong, but it looks to me as though there might be a significant problem that has not been addressed.
The clause gives power to law enforcement officers to take documents, both copies and originals, and to retain them. One needs to keep in mind that the person who is to be made the subject of the order might well have a legitimate need for a copy of the documents, either to deal with the allegations that have been made—that is natural justice—or to carry out his ordinary business. That applies also to third parties, who, as we all understand, might be affected by the order and might have a legitimate need to see copies of the documents, to see whether they wish to make representations to the court, as is provided for in the Bill, or otherwise to conduct their business.
It is possible that I have overlooked a passage, but when I look at the clause, I see no obligation on the law enforcement officers who have taken possession of the originals or copies of documents to deliver a copy on request to the subject of the order or to a third party. That seems to me to offend both natural justice and general disclosure laws that apply in criminal and civil courts.
There might be exceptional cases in which it would be wrong to provide the subject of the order or a third party with a copy. I suppose that one can construct such cases and I have provided for that in the amendment, which would give the enforcement agency the power to go to the court to get relief from delivering up a copy. As a matter of general principle, however, it is right that a law enforcement agency should have to deliver to the person who is the subject of the order or to a third party a copy of the relevant documents on request. In that spirit, I move the amendment.

Vernon Coaker: I am afraid that we shall resist the amendment. It is unnecessary in relation to the subject of the order, who would be the originator of the document would therefore have had the opportunity to make copies. In relation to third parties, it does not follow that, simply because a third party has been given leave to make representations under clause 10, they should have access to all the material produced under the terms of the order. The subject of an order should not need to make an application to the court every time that he wishes the contents of a document that he has provided not to be passed on to a third party. That would be wholly unreasonable to the subject of the order.
In addition, the amendment could put in jeopardy possible subsequent investigations or prosecutions, as it makes no allowance for the applicant authority or law enforcement agency to make an application to the court for non-disclosure. In the light of those comments, I ask the right hon. and learned Gentleman to withdraw his amendment.

Douglas Hogg: I am bound to say that I am disappointed by that response. I draw on a certain amount of experience in this matter. About three weeks ago, I was acting in a case in which the police had seized every single document on the premises and carted them all away. They kept possession of them for more than two years. The idea that my client had access to copies is simply wrong; he had neither copies nor originals. He was facing confiscation proceedings under the Proceeds of Crime Act 2002, so that was a serious deprivation to him.
In appropriate cases, the law enforcement officer should be obliged to provide the person who is to be made the subject of the order with a copy, which he otherwise would not have. If he had a copy, he would not make the application. He would make the application because he did not have the copy and he needed it. I am saying no more than the principle of natural justice and disclosure in the ordinary criminal and civil courts requires. I hope that the Minister will think again, and I do not withdraw my amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived.

Clause 38 ordered to stand part of the Bill.

Clauses 39 and 40 ordered to stand part of the Bill.

Clause 41

Intentionally encouraging or assisting an offence

James Brokenshire: I beg to move amendment No. 173, in clause 41, page 25, line 26, leave out ‘foreseeable’ and insert ‘reasonable’.
We now move to part 2, which deals with inchoate offences. The amendment is probing in nature. I recognise that the language is not as effective as we would choose to make it. The amendment focuses on the use of the word “forseeability”. When we use that word, are we talking about a subjective or objective test? In other words, is it foreseeable by the individual that that was the consequence or was it something that should have been foreseen by them and that a reasonable person would have foreseen in the circumstances?
In moving the amendment, I stress that it is probing in nature and is designed to gain greater understanding of the context of this clause and, in particular, the use of the word foreseeable.

Maria Eagle: Although I have been on this Committee for only one day, I feel like I have been here for a very long time. [Interruption.] Hon. Members should not misunderstand me. It is simply that I have been waiting for so long to get to my feet, and not because of the content of our debate, which has been interesting, illuminating and lively. Committees are always good when they are those things.
May I also say what a pleasure it is, Mr. Benton, to be subject to your chairmanship? While it appears gentle at times, it is actually more effective than some may think. You have kept us well in order and we are very fortunate to have you.
May I begin by thanking the hon. Member for Hornchurch for making it clear that his amendment is probing in nature? We do not then have to dance on the head of a pin over the difference between foreseeable and reasonable. I think that will do us all a favour at this time of the afternoon.
Briefly, I want to set out the offences that we are dealing with here. We will come back to them in clause stand part as well. Clause 41, which is in part 2, creates an offence if a person, whom I shall refer to as D,
“does an act capable of encouraging or assisting”
another person, to whom I shall refer as P, to commit an offence, and D
“intends to encourage or assist”
that offence.
Clause 42 creates an offence that is committed when D
“does an act capable of encouraging or assisting”
P to commit an offence, and D “believes” that P will commit the offence and
“that his act will encourage or assist”
P to commit the offence.
Clause 43 creates an offence that is committed when D
“does an act capable of encouraging or assisting”
P to commit
“a number of offences; and...believes...that one or more of those offences will be committed...and...that his act will encourage or assist”
one or more of P’s offences.
We will be discussing the nature of clauses 42 and 43 in more detail at the appropriate point if we have clause stand part debates.
The amendment relates to clause 41, but in order for liability to arise under the clause, it must be proved that D
“intends to encourage or assist”
an offence. The notion of intention is given a particular meaning by subsection (2), which states that D
“is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act”.
I hope that it assists the hon. Member for Hornchurch if I say that what we are trying to get at is that intention should be interpreted in a narrow way, and should exclude the concept of virtual certainty. It is equivalent to meaning that D’s purpose must be to assist or encourage the offence.
The measure was a recommendation from the Law Commission following a lengthy debate and much concern. Following consultation, we have followed that recommendation. I hope that the fact that the measure has a long pedigree of consideration by erudite and learned people behind it will assist me in persuading the hon. Gentleman and his hon. and right hon. and learned Friends, and that he would be perfectly safe to withdraw the amendment. I assure him and reiterate that we have the same purpose in mind, which is to ensure that the notion of intention is interpreted narrowly. I hope that the hon. Gentleman feels able to withdraw the amendment.

James Brokenshire: I am grateful to the Under-Secretary for that statement of the intent behind the clause. The measure will obviously sit within a range of case law. In the light of her explanation and confirmation, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 ordered to stand part of the Bill.

Clause 42

Encouraging or assisting an offence believing it will be committed

Douglas Hogg: I beg to move amendment No. 152, in clause 42, page 25, line 31, at beginning insert
‘at the time that he does the act’.

Joe Benton: With this it will be convenient to discuss amendment No. 7, in clause 42, page 25, line 33, at end add ‘; and
(c) his act was unreasonable’.

Douglas Hogg: I have not yet had the opportunity to welcome the Under-Secretary to the Committee, at least not formally. I recognise that we are now debating a part of the Bill for which she has responsibility. I am sorry that she feels that she has sat here for too long, but we understand that—it is the Opposition’s business to ensure that she sits here somewhat longer to answer our queries.
Part 2 originates from the Law Commission, and they are likely to have pored over in some detail the clauses that we are now debating. I shall therefore venture with more diffidence than usual. Although there is a risk that I am dancing on the head of a pin, as it were, I think that my anxiety is worth exploring.
Amendment No. 152 would change clause 42(b). The present drafting will enable a disjunction of time between the doing of an act and the belief that it will have criminal implications. It will not happen often, and it may not happen at all, but if one reads the Bill, one sees that an offence will be committed when a person
“does an act capable of encouraging or assisting the commission of an offence; and...he believes...that the offence will be committed”.
The clause does not provide that the belief must be associated in time with the act. I may be dancing on the head of a pin, but I could contemplate a situation in which someone has done something in their past that is
“capable of encouraging or assisting the commission of an offence”.
—they could, for example, make a loan. At that stage, the person acts innocently or not fully aware of the circumstances. Later on, he discovers that the person to whom he has made the loan intends to use the money in order to commit a criminal offence or to fund one. I agree that it is not terribly likely, but it seems to me that it could happen and that it would be better by far to make it plain that the belief must be associated with the act so that the offence is committed only when the person carries out the act and at the same time has the belief provided for in the clause. It is in that spirit that I move the amendment.

Jeremy Browne: Would it be in order for me to speak about amendment No. 42 and amendment No. 7, which stands in my name, at the same time?

Joe Benton: Yes.

Jeremy Browne: I, too, welcome the new Minister to her duties. I now realise why the hon. Member for Bradford, South (Mr. Sutcliffe) sat through all our previous sittings. I am only sad for him that he did not get to give us the benefit of his views before he was transferred. The glamorous world of sport awaits him, so maybe that is a consolation for not being able to speak on this issue.
Amendment No. 7 would add a further subsection, (c), which would require that
“his act was unreasonable”.
Let me make two brief points. First, there is a danger that the person could innocently come under the effect of the clause without realising that they were doing anything unreasonable. Secondly, the amendment would shift the burden of proof as it would mean that the defendant no longer has to demonstrate that the reasonableness is something that he has been party to or that he has behaved in such a way. The onus is moved to the prosecution to show that the act was not reasonable. At the moment, the defendant must show that he has behaved reasonably. If the amendment is put in place, the burden will fall on those who wish to show that he has behaved unreasonably. That provides a greater safeguard, and that is why I have proposed the amendment.

James Brokenshire: I rise to support the amendment tabled by my right hon. and learned Friend the Member for Sleaford and North Hykeham. As always, if we can seek to provide some greater clarity in legislation that is always welcome. His point might be technical and narrow, but it is still worth exploring in terms of the timing of the belief that occurs.
I am not persuaded of the merits of the amendment tabled by the hon. Member for Taunton. We have an “act” in the first part of the clause and then some sort of intention—what “he believes”. Two elements are applied, and to add a third would confuse the situation when the tests are relatively clear. I shall certainly listen to what the Minister says.

Geoffrey Cox: I rise with some diffidence, like my right hon. and learned Friend the Member for Sleaford and North Hykeham, because this is the work of the Law Commission. I am finding clause 42 slightly difficult to understand. I assume that it is intended to capture a form of recklessness, in that the defendant would have to have committed an act believing that it would help the commission of a crime and that the crime would be committed. If someone were in that state of mind, there is a narrow, slender difference between doing that and intending to help the commission of a crime, which is what clause 41 deals with. Clause 41 deals with a situation where there is actual intention to help the commission of a crime.
I assume that clause 42 must deal with people who, although they believe what they are doing is helping the commission of a crime and believe that it will be committed, do not intend to do it. I may be wrong. I should be grateful for clarification. If that is right, I would support the amendment moved by my right hon. and learned Friend, because it would bring some clarification. It might be thought unnecessary, in that a court would not interpret it any differently from the way that my right hon. and learned Friend has suggested it, but it would bring an element of additional clarification to the situation.

Maria Eagle: Perhaps it will be easier to deal with the amendments and assist our discussion if I set out the Government’s understanding of what the clause does. Clause 42 creates a new offence of encouraging or assisting an offence, believing that it will be committed, as opposed to intending that it will be committed, which is what clause 41 deals with. As both the right hon. and learned Member for Sleaford and North Hykeham and the hon. and learned Member for Torridge and West Devon have said, the clause arises from the Law Commission report.
The clause imposes liability on a person who encourages or assists an offence where he does not intend an offence to occur, but believes that it will. It goes further than the current law of incitement, which is generally thought only to apply where it is a person’s purpose or intention to encourage an offence. In that sense, it advances the Law Society’s recommendation that the current law be extended to cover those who believe that an offence would be encouraged or assisted.
In order to be guilty of this offence a person must do an act that is capable of encouraging or assisting an offence by another person and must believe that the offence will be committed and that his act will encourage or assist its commission.

Douglas Hogg: Will the Minister address the point that I raised: namely, whether the belief has to be in existence at the time that the act is done, or whether the offence is committed if, subsequently, the defendant develops a belief?

Maria Eagle: I will deal with that immediately, because I am almost at the end of setting out my understanding of clause 42, which I first looked at yesterday.
Amendment No. 152 makes it clear that D would need to have the required belief at the time of doing his act. The question in deciding whether to support the right hon. and learned Gentleman’s amendment is whether the additional words add anything to what is already there.
The clause makes it clear that, in order to be guilty of the offence, D must do an act of encouragement or assistance, believing that his act will encourage or assist at the time. Although that is not included in the Bill—that is the whole point of the right hon. and learned Gentleman’s amendment—we do not believe that an order would be made out if, at the time of doing the act, D did not have any such belief. We are all crowding on to the head of a pin now. However, that is the advice that I have been given.

Geoffrey Cox: Whole cases have been won on that.

Maria Eagle: Indeed. Where would lawyers be without the heads of pins?
Let me give an example to try to illustrate what I mean. Such concepts can be difficult to understand without examples. We can fuss about how good examples are, but they assist us. If D lends P a baseball bat, he will only be guilty of an offence if he believed that, at the time of lending the bat, P was about to bash somebody over the head with it. If he lent him the bat believing that he would play baseball, he would not be committing the offence. That is what we are intending to capture under the offence mentioned in clause 42.
We do not believe that the extra clarity that the right hon. and learned Gentleman’s amendment would include in the Bill is necessary. I will not say “otiose”, although I always try to get it in at some point. However, the amendment would not add anything to the current draft. Although I was not present at the time, I understand that the wording has been carefully discussed with counsel and is based on what the Law Commission had to say. Although I am reluctant to disagree with the right hon. and learned Gentleman, whose erudition in these matters is well known across the House, I shall have to say that this particular amendment is not necessary. I hope that that satisfies him.
Amendment No. 7 would add a new subsection to the clause, requiring the prosecution in each case where it is alleged that D has, with belief, done an act capable of encouraging or assisting an offence to prove beyond reasonable doubt that the defendant’s behaviour was unreasonable. The amendment is neither desirable nor necessary. The scope of the offence in clause 42—an offence committed with belief—is wide and could cover many everyday activities, such as lending somebody a baseball bat.
Examples given during the debate on this issue in the other place, and indeed, in the Law Commission report, included that of a motorist who moves over to let a speeding driver pass—I expect that we have all done that—and that of a salesperson who sells spray paint believing that it will be used to commit criminal damage. It is not intended that these offences should criminalise conduct that is considered reasonable, but the Government agree with the Law Commission that it would be better to rely on a defence of acting reasonably in the circumstances, which is included in clause 47, rather than to try to attach the reasonableness condition that the amendment seeks.
In proving these offences, the prosecution must also show some awareness on D’s part, whether it be belief or recklessness, that the principal offender will operate with the necessary mens rea—or guilty mind, fault, or whichever words the Law Commission and others come up with to mean what lawyers think of as mens rea—for the principal offence or with any necessary circumstances or consequences.
If we accept that this element would be made out, the question is whether the prosecution should have to prove that D’s behaviour was unreasonable, as would be the case under the amendment, or whether D should have to prove that his behaviour was reasonable, as would be the case under the Bill. The Law Commission took the view that the burden should fall on D, arguing that only he will know why he considers his behaviour to have been reasonable in those circumstances. The man who lent the baseball bat to the villain who then thumped somebody over the head with it thought that he was lending it for him to play baseball with. He knows that, but it is not necessarily the case that the prosecution can prove any such thing.
We do not believe that there is any unfairness in having the burden this way round. The prosecution will have already proved that that defendant has done something to assist or encourage an offence, believing that it would be committed. It will have dealt with that burden. The burden would then be on the defendant to show that it was reasonable for him to act in the way that he did in the circumstances that he knew or believed to exist. Only the defendant would be in a position to explain why he acted as he did and why it was reasonable to have done so.
These particular circumstances and the facts of the particular case, which he could use to justify his behaviour, would be peculiarly within his own knowledge and not within the knowledge of anybody else.

Geoffrey Cox: I think I know why my right hon. and learned Friend the Member for Sleaford and North Hykeham has proposed an amendment. Let us suppose that D hands the baseball bat to E intending that he should use it simply to play baseball but becomes aware 20 minutes later, or even the following day, that E will use it to commit an affray. Would such a person be acquitted under this clause?

Maria Eagle: Yes.

Geoffrey Cox: Even though he does not take the baseball bat back?

Maria Eagle: I am not sure that I would be approaching someone who had a baseball bat when I knew that he was going to bash somebody over the head with it. My point is that if D did not have that belief at the time that he lent the baseball bat, the offence is not made out.
I hope that the Committee can see that that is a reasonably clear and sensible place to draw the line. I understand the right hon. and learned Member for Sleaford and North Hykeham wanting clarity, because in many ways these inchoate offences are inherently difficult to grasp—if hon. Members think that clause 42 is awkward, they should wait until we reach clause 44. Having said that, I hope that with the assistance and work that the Law Commission has provided we have got to a place that is as good as it can be. Given those explanations, I hope that the right hon. and learned Gentleman will be willing to withdraw the amendment.

Douglas Hogg: I shall not press the amendment to a Division, because I am not actually sure about the correctness of the position that I have adopted. Further thought needs to be given to the issue by all sides. We should take the Minister’s example of the baseball bat, because she is quite right: it is sometimes helpful to consider examples. A chap lends to another a baseball bat, and at that moment, all parties are innocent. They walk to a pub together and they get drunk. The person who has the baseball bat falls into a row with a third party, and decides to whack the third party with the baseball bat. He says to the donor of the baseball bat, “Thank God you’ve given me the baseball bat. I can now go and do something to the third party.” One could construct an argument to the effect that, actually, unless the donor intervenes, the donor should be guilty of an offence in terms of public policy. The language of the statute is capable of supporting a prosecution.
The Minister says that we should look at the issue in broad terms, and that in matters of natural justice we should not create an offence unless at the moment that one handed over the baseball bat, one had the necessary belief. However, there is another public interest argument, which is that if one becomes aware of subsequent facts that show that the bat will be used for an unlawful purpose, one should intervene. If the statute’s language is sufficiently wide as to capture that latter situation, we may have got ourselves an offence where we did not intend to create one. That is my anxiety.
Although I see the force in what the Minister said, because I accept that I am at risk of dancing on the head of a pin, I none the less draw some comfort from the remarks of my hon. and learned Friend the Member for Torridge and West Devon. The provision is capable of a different construction, which none of us really intends.

Geoffrey Cox: It is unlikely to be used in that way.

Douglas Hogg: It is unlikely to be used in that way, but we are here to guard against the unlikely as well as against the probable.

Maria Eagle: The right hon. and learned Gentleman is here to try to ensure that the legislation is as clear as it can be, and I have accepted that it is inherently difficult to be extremely precise with inchoate defences, hence the recent efforts of the Law Commission. We are confident that an offence would be made out for D only where he was aware at the time that he was undertaking the act of encouraging and assisting. At that time, he must have that belief. I hear what the right hon. and learned Gentleman says, and I am happy to think very hard about it, but I cannot think that he might be right.
We will return to the Bill on Report, and I think that we have covered all the angles, but between now and Report, I shall think about what the right hon. and learned Gentleman has said. If I, my officials or lawyers have, upon the basis of what he said, a revelation that we might be wrong, we will consider the matter further, but I cannot see the space in which we might be. With such difficult offences, I understand his concern to ensure that we are absolutely clear, but I hope that with that assurance, he may feel able to withdraw his amendment.

Douglas Hogg: As you know, Mr. Benton, we live in an era of humility. The Prime Minister is humble. He is very humble, he is. The Minister is humble, too; she thinks that she might be wrong. I am humble as well; I might be wrong as well. So on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 ordered to stand part of the Bill.

Clauses 43 to 45 ordered to stand part of the Bill.

Clause 46

Supplemental provisions

Douglas Hogg: I beg to move amendment No. 153, in clause 46, page 28, line 19, leave out subsection (6).
I suspect that the Minister is very glad to have passed over clause 44 without a debate, as we all are. I do not think that any of us really understood it, and she would have had to make a reasoned response. She must be relieved, as indeed am I.
Amendment No. 153 is very narrow and represents a grievance that I have had in this place for years. [Interruption.] It is not my only grievance—I see the Whip chatting away. I have many grievances. This is just one of them. As is so often the case, the Bill gives to the Secretary of State the power to amend by order—in this case, the power to amend the listed offences in schedule 3. The Committee will have been diligent in this matter and will have checked the order-making powers at the end of the Bill and found that this particular one is subject to the negative procedure. I can assure the Minister of that; it is not subject to the affirmative procedure.
That raises two questions: first, should we modify a Bill at all? And secondly, if we should do so, should it be done in a way that is wholly unamendable and unlikely to be challenged? That raises general propositions and principles that I have rehearsed time and time again. I am against that procedure. If we are to amend Bills by way of order, I think that it should be done using the affirmative resolution procedure. In general, in fact, I am very much in favour of the super-affirmative resolution procedure, which enables the House to consider whether it wishes changes to be made to the draft before it comes before it for resolution.
Having said that, however, I strongly suspect that the Minister will make an unhelpful response, and I am conscious that on this matter the Committee is unlikely to be with me. I suspect, therefore, that we will not be voting on it.

Maria Eagle: I am almost disappointed that we went past clause 44 without my getting the chance to practise my newly gained understanding of what it actually means—I did an awful lot of work on it. But there we are! No doubt, it will come in handy at some point.
I understand from the way in which the right hon. and learned Gentleman moved his amendment that he is continuing his campaign for the powers of the House to be as he thinks that they ought to be. I fully understand that. He has assured me that these order-making powers come under the negative procedure, but as I understand it clause 79(3) states that amendments made under clause 46(6) will be subject to the affirmative procedure. If that is incorrect, I shall get my lawyers to have another look—

Douglas Hogg: I think that the Minister is right actually. I am sorry.

Maria Eagle: I am correct. That is not bad for so late in the evening. If I had been incorrect, I would have undertaken to provide for our intention that it be subject to the affirmative procedure, but given that the right hon. and learned Gentleman accepts that I am correct, perhaps I should invite him to withdraw his amendment.

Douglas Hogg: The Minister is correct. I had overlooked clause 79(3) or at least did not spot the reference to clause 46(6). None the less, I would have favoured the super-affirmative resolution, because, of course, the affirmative resolution procedure does not enable the House to amend an order. She could come forward, therefore, with a raft of amendments under the provisions, and the House will have to take them either in totality or not at all, whereas in fact we might like some amendments but not others. That is another objection to the affirmative resolution procedure. However, she is right and deserves congratulations for having spotted my error. On that basis and, indeed, on others, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46 ordered to stand part of the Bill.

Schedule 3

Listed Offences

Maria Eagle: I beg to move amendment No. 138, in schedule 3, page 58, line 6, at end insert
‘consisting in attempting an act calculated or likely to cause sedition or disaffection in contravention of that subsection.’.

Joe Benton: With this it will be convenient to discuss the following: Government amendment No. 139.
Amendment No. 172, in schedule 3, page 58, line 35, at end insert—
‘14A An offence under section 1 of the Computer Misuse Act 1990 (c.18) (unauthorised access to computer material).
14B An offence under section 2 of that Act (unauthorised access with intent to commit or facilitate the commission of further offences).
14C An offence under section 3 of that Act (unauthorised modification of computer material).’.
Government amendments Nos. 140 to 145.

Maria Eagle: As a brief reminder for those who have not read it recently, the schedule contains a list of offences that can be considered encouraged or assisted offences only when D intends them to take place.
Government amendments Nos. 140 to 143 are additions that we should like to make to the schedule. The original list of offences was taken from the Law Commission’s draft Bill. It did a lot of work on identifying offences that ought to be excluded as belief offences, and we were grateful for that. During the Bill’s passage through Parliament my officials have been conducting a trawl of existing legislation, as officials do at such times, to see whether the Law Commission managed to identify all the offences that ought to be in the schedule. They have found a number of additional offences. We added some on Report in the other place and indicated that we thought there might be more to come, and the amendments contain the extra offences that we have discovered. They are all consistent with those included in the original Law Commission draft Bill.
I hope that these further additions will provide us with a final, complete list. It is a hostage to fortune for me to have said that, but I hope that these are the last amendments that we will need to make to the schedule. Amendment No. 140 will add the offence under section 2(2) of the Landmines Act 1998 of encouraging, assisting or inducing an offence. Amendment No. 141 will add a list of offences from the Terrorism Act 2006. 
Amendments Nos. 142 and 143 will add offences under section 13 of the Greater London Council (General Powers) Act 1973 and section 21(6) of the Greater London Council (General Powers) Act 1974 with regard to assaults on officers. Amendments Nos. 138 and 139 will restrict the offences in the Aliens Restriction (Amendment) Act 1919, set out in paragraphs 5 and 6 of the schedule, to the attempt to perform an act. Amendments Nos. 144 and 145 are minor drafting amendments.
The amendments are simply tidying up, and I hope that they are not controversial and that the Committee will feel able to support them.

James Brokenshire: I shall comment briefly on the amendments. I do not intend to pursue amendment No. 172, which my hon. Friend the Member for Arundel and South Downs (Nick Herbert) and I tabled, considering the Minister’s trawl through the relevant offences. She will be aware of the debate that took place in the other place on whether the offences in question should just be repealed. It would then be a question of ensuring that all the necessary repeals were picked up.
There is concern about the operation of the schedule and the approach that has been taken, as expressed in the other place. I do not intend to rehearse the points raised there, and I note the Minister’s additional provisions. The risk is that other offences are yet to be discovered, which highlights the issue of certainty and reaffirms the concerns and reservations expressed by their lordships.

Amendmentagreed to.

Amendments made: No. 139, in schedule 3, page 58, line 8, at end insert
‘consisting in attempting to promote industrial unrest in contravention of that subsection.’.
No. 140, in schedule 3, page 59, line 9, at end insert—

‘Landmines Act 1998 (c. 33)
An offence under section 2(2) of the Landmines Act 1998 (encouraging, assisting or inducing an offence under section 2(1) of that Act).’.
No. 141, in schedule 3, page 59, line 9, at end insert—

‘Terrorism Act 2006 (c. 11)
An offence under section 1(2) of the Terrorism Act 2006 (encouraging terrorism).
An offence under section 2(1) of that Act (disseminating terrorist publications).
An offence under section 5 of that Act (engaging in conduct in preparation for giving effect to intention to commit or assisting another to commit acts of terrorism).
An offence under section 6(1) of that Act (provision of instruction or training knowing that a person trained or instructed intends to use the skills obtained for or in connection with the commission of acts of terrorism or for assisting the commission or preparation of such acts by others).
An offence under section 6(2) of that Act as a result of paragraph (b)(ii) of that subsection (receipt of instruction or training intending to use the skills obtained for assisting the commission or preparation of acts of terrorism by others).’.
No. 142, in schedule 3, page 59, line 25, at end insert—

‘Greater London Council (General Powers) Act 1973 (c. xxx)
An offence under section 13 of the Greater London Council (General Powers) Act 1973 (assaults etc. on officers) consisting in the aiding or inciting of any person to assault, resist or obstruct an officer of the Thames Water Authority duly exercising or performing any power or duty under a section or byelaw mentioned in that section.’.
No. 143, in schedule 3, page 59, line 25, at end insert—

‘Greater London Council (General Powers) Act 1974 (c. xxiv)
An offence under section 21(6) of the Greater London Council (General Powers) Act 1974 (assaults etc. on officers of a borough council) consisting in the aiding or inciting of any person to assault, resist or obstruct an officer of a borough council duly exercising or performing any power or duty under section 21 of that Act.’.
No. 144, in schedule 3, page 60, line 1, for ‘13(8)’ substitute ‘13(9)’.
No. 145, in schedule 3, page 60, line 2, for ‘13(7)’ substitute ‘13(8)’.—[Maria Eagle.]

Schedule 3, as amended, agreed to.

Clauses 47 to 49 ordered to stand part of the Bill.

Schedule 4 agreed to.

Clauses 50 to 56 ordered to stand part of the Bill.

Schedule 5 agreed to.

Clauses 57 and 58 ordered to stand part of the Bill.

Schedule 6

Minor and consequential amendments: Part 2

Maria Eagle: I beg to move amendment No. 146, in schedule 6, page 66, line 41, at end insert—
‘Section 29(6)(i) of the Criminal Procedure and Investigations Act 1996 (c. 25) (meaning of “terrorism offence” for purpose of requirement to hold preparatory hearing).’.

Joe Benton: With this it will be convenient to discuss the following:
Government amendment No. 147.
Government new clause 9—No individual liability in respect of corporate manslaughter.

Maria Eagle: The speed with which the Committeeis working this afternoon is extremely impressive, Mr. Benton; it must have something to do with your chairmanship.
The amendments and the new clause tidy up two aspects of part 2. Government amendments Nos. 146 and 147 relate to schedule 6. The schedule lists various references in current legislation to the common law offence of incitement, which we are now putting on a statutory footing. Clause 58(1) provides that, following the commencement of part 2, those references should be read as references to the offences in clauses 41, 42 and 43.
The amendments add a couple of references to schedule 6. The result is that they will be read also as references to the new offences of assisting and encouraging in clauses 41 to 43. Government amendment No. 146 adds the reference to the common law offence of incitement in section 29(6)(i) of the Criminal Procedure and Investigations Act 1996; it sets out the meaning of “terrorism offence” for the purpose of the requirement to hold a preparatory hearing. Government amendment No. 147 adds the reference to paragraph 12(b) of schedule 1 to the Terrorism Act 2006, which refers to inciting a convention offence. That will now be read as a reference to the offences in part 2. The amendments put the old common law offences on a statutory footing.
Government new clause 9 deals with the relationship between the new offences of encouraging and assisting, and the new offence of corporate manslaughter. As the Committee will know, the Corporate Manslaughter and Corporate Homicide Bill has yet to complete its proceedings in Parliament, and we need to consider the application of part 2 of the Serious Crime Bill in that context.
Many of those who participated in discussions on the corporate manslaughter Bill, which I may yet be dealing with, will be aware that the new offence is aimed at holding organisations to account for gross corporate negligence that kills someone. Because it is targeted at corporate negligence, the offence applies to the organisation and not to individuals. Secondary liability is specifically excluded. That point was considered at length in the context of the corporate manslaughter Bill, and we obviously cannot reopen that debate today. However, there is some overlap between the new “assisting and encouraging” offences and the current rules of secondary liability.
The Corporate Manslaughter and Corporate Homicide Bill therefore needs to be updated to reflect those new offences. That will go slightly further that the corporate manslaughter Bill does at present, because liability will also be excluded if the primary offence—that of corporate manslaughter—has not been committed. That is currently covered by the law on incitement, and the Serious Crime Bill does not specifically exclude liability in that respect.
The prospect of prosecutions for inciting the new offence is remote in practice, but that does not mean that things should not be tidied up. There is some doubt as to whether a company can be incited under the criminal law, and there are particular difficulties with the notion of encouragement in that context, other than in circumstances where all the relevant fault lies with an individual. That would be dealt with under the current law of manslaughter, rather than through the corporate manslaughter Bill.

Crispin Blunt: Obviously, the corporate manslaughter Bill has yet to complete its passage through Parliament. It is extremely controversial, however, and it is possible that agreement will not be reached between our House and the other place.
What happens in such circumstances?

Maria Eagle: Ping-pong. However, I need not detain the Committee in that regard, because we believe that it makes more sense to exclude all applications of part 2—the issue that we are dealing with in respect of this Bill—to corporate manslaughter. In that sense, it does not matter how the Bill ends up. We need to ensure that any important references relate directly across the Bills, and we will remove this addition if the corporate manslaughter Bill is not passed. The key point is that if that Bill falls as a result of ping-pong, we will not need to make the cross-references. I hope that that explains the amendment.

James Brokenshire: I hear what the Minister says about the detailed and technical nature of most of the amendments. May I put on record the fact that in not seeking to oppose new clause 9 at this stage, we are not in any way rowing back on any of the concerns that we have expressed about the corporate manslaughter Bill? On the basis of the Minister’s assurances that if that Bill is not passed, new clause 9 will be removed on Report, we are happy to welcome the amendments as being of a technical nature, and will not seek to oppose them.

Amendment agreed to.

Amendment made: No. 147, in schedule 6, page 68, line 12, at end insert—
‘Paragraph 12(b) of Schedule 1 to the Terrorism Act 2006(c. 11) (Convention offences).’.—[Maria Eagle.]

Schedule 6, as amended, agreed to.

Clauses 59 to 62 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Alan Campbell.]

Adjourned accordingly at seven minutes to Seven o’clock till Thursday 5 July at Nine o’clock.